Theory

Catherine MacKinnon

The underlying core of the feminist jurisprudence theory relies on the premise that the world is structured by patriarchy, which is the systematic and systemic domination of women by men (140). Therefore, viewing the law through the lens of feminist jurisprudence entails critiquing the patriarchal despotism of the system.

This analysis and critique thereby focuses on a variety of issues affecting women such as equal protection laws, discrimination in education, hiring, promotion and various patriarchal biases in law. The feminist jurisprudence contains many different theories such as:

Liberal feminism

Subordination of women is achieved by the blocking of paths leading to success in public spheres. Liberal feminism argues for a “gender blind law”, where there no special treatment afforded to individuals based on gender.

Radical feminism

Focuses on the social construction of gender within patriarchy. Radical feminism purports that the actual idea of femininity cannot be deciphered until the norms underlying patriarchy are dismantled. According to Radical feminism, patriarchy is deeply rooted in society and fundamental changes to the basic structures, such as the socialization of the young, are direly needed to uproot patriarchy.

Marxist feminism

This theory, much like its predecessor, argues that oppression of women is a byproduct of capitalism and its characterization of the “private” domestic sphere (child bearing and rearing) as economically defunct principles.

Postmodern feminism

Postmodern feminism is critical in nature and utilizes the techniques of deconstruction to showcase the underlying and internal contradictions of patriarchal systems. Under this theory, the “otherness” of women is embraced as a distinctive and separate entity that does not need to be evaluated by standards of patriarchy.

Relational feminism

Carol Gilligan

This theory reverses the focus of some earlier theories, such as the call for equal rights for women. A staunch proponent of this theory, Carol Gilligan, hypothesizes that men and women are fundamentally different. As a result of these differences men are more abstract and women are more so concerned with relationships and responsibilities. Therefore, the role of women is to create a niche that is separate from the typical male standard.

Nevertheless, there is a fundamental premise that guides all theories and that is the rejection of patriarchy. In essence, the critique of law under feminist jurisprudence is based on assumptions and perspectives of a group that is outside the patriarchal structure of the law. From this perspective, male supremacist jurisprudence erects and furthers standards within law and society that cater to a male point of view(150).

The power balance within society is predominantly shifted to male centered views reflecting the norms present within institutions that become the status quo. Due to this imbalance within society and its institutions women are not permitted fully to comprehend what sex equality would look like, because inequality is the standard women have primarily lived with.

Case Study: Eldridge v B.C.

In the Eldridge case, Justice La Forest finds that an omission to provide sign language interpreters for deaf individuals in a medical context violated the basic tenets of section 15(1) rights. Viewing this case under a feminist jurisprudence, one can extrapolate the undertones of inequality that women face on a daily basis and apply it to other vulnerable groups such as deaf individuals, who face inequality on the basis of their physical disability.

As part of his judgment, Justice La Forest engages in the history of how physically disabled individuals in Canada have undergone exclusion and marginalization (56). He cites examples of how persons with disabilities have faced discrimination in the work force and have been subjected to degrading stereotypes. A prevailing view of physically disabled individuals as flawed individuals within society has accorded them with substandard treatment that contradicts the “equal concern, respect and consideration” aspect within Section 15(1) of the Charter.

Additionally, disabled individuals have to cater to the norms of able-bodied individuals that dominate every aspect of society. As a result, disabled persons, in comparison to non-disabled individuals, have less education, are more likely to falls outside of the labour market, face higher unemployment rates and receive lower pay when employed (56).

Proponents of feminist jurisprudence would agree with the judgment delivered by Justice La Forest since his reasoning favors the plight of a vulnerable group. Historically, women have also faced systematic oppression by patriarchal institutions, remnants of which still continue to exist. Advocates of this theory, such as Catherine A. Mackinnin, would further argue that women recognize inequality because they have lived it and therefore they know what removing those barriers to equality would be like.

Feminist methodology states that equality must be understood and defined on women’s own terms and in accordance with their concrete experiences (154). Similarly, in this case the higher courts viewed the situation through the historical and present day experiences of the deaf individuals and determined that there was an infringement on their section 15(1) rights.

Radical Feminism

Radical feminists would view the omission of the Medical Health Care Services Act as a means of the dominant institution exerting their power over a subjugated group. Radical feminists believe in the reconstruction of the current assumptions of gender, since these assumptions operate to oppress women. In a similar view, radical feminists would then argue for the re-evaluation of how physically disabled individuals are viewed when compared to able- bodied individuals. For radical feminists the solution to the oppression of this vulnerable group is to reverse the prominent construction of how physical disabled individuals are viewed in a negative manner, thereby initiating change in institutional systems as well.

Marxist Feminism

Marxist feminists argue that equality is not possible in a class based society established on the principles of private property and exploitation of the powerless (143). Under this theory, the denial of rights to a marginalized group, such as disabled individuals stemming from a class based system, would only be solved if the current capitalist system would be replaced with a socialist system. However, critics of the theory have argued that Marxist feminism fails to adequately account for the oppression of women as women rather than workers(143).

Postmodern Feminism

Postmodern feminists rely on deconstruction as a means of evaluating social structures. In applying this method, postmodern feminists would propose that in fighting oppression requires the contextual judgments that recognize and accommodate the particularity of human experience, therefore the solution is tailored to the concrete experience of actual people. In delivering his judgment, Justice La Forest engaged in a comprehensive analysis of how physically disabled individuals have historically faced systemic oppression. In acknowledging the struggle the individual group has faced and is still facing, Justice La Forest is engaging in the process of deconstructing the internal contradictions in the system. Ultimately, Justice La Forest decides that the omission to provide a basic right to a group that is in dire need of a service constituted a violation of their human rights. Postmodern feminism would agree with this decision since it was on the specific experience of the group.

Relational Feminism

Relational feminists would argue that physically disabled individuals are fundamentally different and therefore equality should be granted on those differences rather then arguing that they are similar to able-bodied individuals. Furthermore, relational feminists would argue that deaf individuals should not have to fit into the stereotypical notions perpetuated in a world dominated by able- bodied individuals. Deaf individuals should be free to form their own values and ideals that are different from the dominant ideologies. In doing so, the marginalized group then creates its own characteristics distinct from society and equality must be based on those characteristics.